Transcript

Friday, September 26, 2008

BOB GARFIELD:This is On the Media. I'm Bob Garfield. BROOKE GLADSTONE:And I'm Brooke Gladstone with some updates from the secrecy files – actually, from the excellent Secrecy News Blog, by Steven Aftergood. For the first time in a long time, we're seeing some sunshine. Two weeks ago, we reported on a lawsuit filed by the group Citizens for Responsibility in Ethics in Washington, or CREW, against Vice-President Dick Cheney, among others.

CREW’s complaint was that Cheney was unresponsive to the legal requirement that he turn over his documents, all of them, to the National Archives at the end of the term. Cheney maintained that a big chunk of those papers, those generated by activities outside the executive branch, were exempt. That would include documents related to his work in the Senate or for other agencies. For example, records of his efforts to win reauthorization of the warrantless wiretapping program for the National Security Agency would be his to keep or shred.

That sparked grave concern among CREW and the historians who were party to that suit. ANNE WEISMANN:We're not talking about records that we think eventually will become available for public review. BROOKE GLADSTONE:Crew’s chief counsel, Anne Weismann. ANNE WEISMANN:We're talking about records that, unless they're covered by this act, may be destroyed altogether. And I think it’s an especially acute loss when you consider how enormously active this vice-president has been, probably more than any other vice president in history. BROOKE GLADSTONE:Last Saturday, CREW won the first round. U.S. District Court Judge Colleen Kollar Kotelly issued a preliminary injunction ordering the vice president and the National Archives to preserve all his official records. BOB GARFIELD:And it’s been a good month for the ACLU. On September 22nd a federal court ordered the Defense Department to release 21 photographs depicting the abuse of detainees by U.S. forces in Iraq and Afghanistan.

This is the end of a long court battle that began with the Freedom of Information Act request in 2003. We spoke to Emily Whitfield, who was the ACLU spokesperson, in 2005, about the power of pictures.

EMILY WHITFIELD:The Abu Ghraib photos really galvanized the public around this issue, and it made them understand, in a way that no amount of paper documents ever would, what exactly was going on over there.

We know these photos exist. The Army certainly knows it. And they are desperate not to have them released. I can tell you how desperate. The Army recently argued to the court in trying to resist releasing these photos that to release photos of prisoners and videotapes of prisoners would violate the prisoners’ Geneva Convention rights, which [BROOKE LAUGHS] is just so ironic, it’s, it’s hard to believe. BOB GARFIELD:On September 22nd the court agreed, noting that the conventions were intended to prevent the abuse of prisoners, not to obstruct those who, quote, “seek information about prisoner abuse in an effort to help deter it.”

The government also argued that the photos were exempt under FOIA because they could be used to incite violence and endanger the lives of individuals. But the court said the FOIA exemption could not be used as an, quote, “all-purpose damper on global controversy.”

ACLU staff attorney Amrit Singh called the decision “a resounding victory for the public’s right to hold the government accountable.” BROOKE GLADSTONE:Which brings us to this week’s third and final piece of secrecy news. Earlier this month, a bill introduced in the Senate by Democrats Russ Feingold and Dianne Feinstein responds to the Bush Administration’s use of secret opinions from the Justice Department’s Office of Legal Counsel, or OLC.

The new bill would require that the Attorney General report to Congress whenever the Department of Justice issues a secret legal opinion indicating that the executive branch is not bound by existing law.

The act notes that the current White House has relied heavily on OLC opinions in matters ranging from warrantless wiretapping to torture, to the detention of U.S. citizens. Under this bill, the Office of Legal Counsel would have to notify Congress whenever it issued an opinion advising the White House that it is, in any given matter, above the law.

This is probably just a political gesture. Its chances of passage are nil. Maybe it’s just a primal scream - but sometimes it’s nice just to hear the screaming.